State v. Laflin ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:09 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. LAFLIN
Cite as 23 Neb. Ct. App. 839
State of Nebraska, appellee, v.
Ryan M. Laflin, appellant.
___ N.W.2d ___
Filed March 22, 2016. No. A-15-505.
1. Criminal Law: Trial. In criminal prosecutions, the withdrawal of a rest
in a trial on the merits is within the discretion of the trial court.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Trial: Proof: Courts. Withdrawal of rest to fill in gaps in proof is
proper, as long as the court does not advocate for or advise the State to
withdraw its rest.
4. Trial: Proof: Evidence: Courts. Where the trial court alerts the State to
an absence of proof and invites the State to withdraw its rest in order to
present additional evidence, the trial court has abused its discretion and
abandoned its role as a neutral fact finder.
5. Venue: Proof. The State must prove proper venue beyond a reasonable
doubt in criminal cases.
6. Judgments: Trial: Evidence: Proof: Appeal and Error. In a bench
trial of a law action, including a criminal case tried without a jury,
erroneous admission of evidence is not reversible error if other relevant
evidence, admitted without objection or properly admitted over objec-
tion, sustains the trial court’s factual findings necessary for the judgment
or decision reviewed.
7. Venue: Proof. Evidence that a defendant is arrested by police officers
employed by a particular city and at an intersection of certain streets is
insufficient proof of venue.
8. Courts: Appeal and Error. Unpublished decisions of the Nebraska
Court of Appeals do not carry precedential weight.
9. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
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STATE v. LAFLIN
Cite as 23 Neb. Ct. App. 839
renewed objection, an appellate court considers all the evidence, both
from the trial and from the hearings on the motion to suppress.
10. Double Jeopardy: Evidence: New Trial: Appeal and Error. Upon a
finding of reversible error, the Double Jeopardy Clause does not forbid a
retrial so long as the sum of the evidence admitted by a trial court would
have been sufficient to sustain a guilty verdict.
11. Evidence: New Trial: Appeal and Error. When considering the suf-
ficiency of the evidence in determining whether to remand for a new
trial or to dismiss, an appellate court must consider all the evidence
presented by the State and admitted by the trial court irrespective of the
correctness of that admission.
12. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
13. Constitutional Law: Search and Seizure. The Fourth Amendment
guarantees the right to be free of unreasonable searches and seizures.
14. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, the appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that the appellate court reviews indepen-
dently of the trial court’s determination.
15. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. A tier-one police-citizen encounter involves the voluntary
cooperation of the citizen elicited through noncoercive questioning and
does not involve any restraint of the liberty of the citizen.
Appeal from the District Court for Gage County, Paul W.
Korslund, Judge, on appeal thereto from the County Court
for Gage County, Steven B. Timm, Judge. Judgment of District
Court reversed, and cause remanded with directions.
Lee Timan and Kyle Manley, of Clark & Timan, P.C., for
appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Irwin, Pirtle, and R iedmann, Judges.
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STATE v. LAFLIN
Cite as 23 Neb. Ct. App. 839
Irwin, Judge.
I. INTRODUCTION
Ryan M. Laflin appeals his conviction for first-offense driv-
ing during revocation. On appeal, Laflin argues that the trial
court abused its discretion by bringing the insufficiency of
the evidence demonstrating venue to the State’s attention and
inviting the State to withdraw its rest in order to present addi-
tional evidence. Additionally, Laflin argues that the arresting
sergeant’s testimony should have been suppressed as a result of
an unlawful seizure.
Upon our review, we find that the trial court abused its
discretion by bringing the insufficiency of the evidence to the
State’s attention and permitting the State to withdraw its rest.
We further conclude that the remaining evidence is insuffi-
cient to sustain Laflin’s conviction. Accordingly, we reverse,
and remand.
II. BACKGROUND
Laflin was charged in the county court for Gage County with
driving during revocation, first offense. Before trial, Laflin
filed a motion to suppress. In the motion, Laflin argued that
he had been unlawfully seized by police and that as a result,
the statements and evidence obtained subsequently to his arrest
should be suppressed. The court held a hearing on the motion
to suppress.
At the suppression hearing, Sgt. Brian Carver of the Beatrice
Police Department testified that on October 18, 2014, he was
parked “just north of Court Street on 4th Street” in Gage
County, writing a parking ticket, when he observed a blue
pickup truck drive by and park one car in front of him.
Sergeant Carver testified that he knew the blue truck belonged
to Laflin. Sergeant Carver testified that he was familiar with
Laflin from prior contacts and knew that Laflin’s license was
on suspended status during the preceding weeks. Sergeant
Carver had not confirmed the status of Laflin’s license on
October 18 when he saw the truck drive past him. Sergeant
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STATE v. LAFLIN
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Carver testified that he observed Laflin to be the driver of
the blue truck and that after Laflin had parked and exited the
vehicle, Sergeant Carver approached him on foot. According
to Sergeant Carver, he did not activate his patrol car’s over-
head lights or place Laflin under arrest, but, rather, asked to
see Laflin’s driver’s license. Sergeant Carver testified that
Laflin was defensive and asked how Sergeant Carver knew
his identity. Sergeant Carver replied that he knew the man was
Laflin and that he believed Laflin’s license was suspended.
Laflin produced a state identification card, but not a driver’s
license. Sergeant Carver testified that he confirmed with police
dispatch that Laflin did not have a valid driver’s license and
then arrested Laflin. The county court denied the motion to
suppress, holding that Laflin had not been seized during his
interaction with Sergeant Carver, because the encounter was a
tier-one citizen-police encounter.
A bench trial was held before the county court on February
10, 2015. At the trial, the State again presented the testimony
of Sergeant Carver. Laflin objected to Sergeant Carver’s tes-
timony on the same basis as his motion to suppress. The trial
court overruled Laflin’s objection and allowed Sergeant Carver
to testify. Sergeant Carver testified in accordance with his
prior testimony at the suppression hearing that he had arrested
Laflin on October 18, 2014, after observing him driving a blue
truck and after speaking with him. Sergeant Carver stated that
he was “parked in the 100 block of North 4th Street writing
a parking ticket” when he observed Laflin driving. However,
unlike the suppression hearing, the State never asked Sergeant
Carver what city or county he was in when he made contact
with Laflin. Lastly, the State introduced into evidence a certi-
fied copy of Laflin’s driving record indicating that Laflin’s
license was revoked at the time of his arrest. The State then
rested its case.
Following the State’s rest, Laflin indicated he did not wish
to present any evidence. The State waived its closing argu-
ment, and Laflin’s attorney made a brief closing argument.
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The court then stated it was satisfied that Laflin had driven at
a time when his license was revoked. The court said, however,
that it did not recall any evidence of venue being presented
and asked the State whether it had proven venue. The State
argued it had presented evidence of venue because Sergeant
Carver had testified that he was in the 100 block of North 4th
Street when he observed Laflin driving. The court reviewed
the record and determined that there was insufficient evi-
dence of venue because Sergeant Carver had not testified to
which city or county he was in when he saw Laflin driving.
The court then asked the State whether it wished to withdraw
its rest and present additional evidence of venue. The State
responded that it did. Laflin objected. The court permitted the
State to withdraw its rest and recall Sergeant Carver. After
being recalled, Sergeant Carver testified that the events to
which he had previously testified occurred in Beatrice, Gage
County, Nebraska.
The county court found Laflin guilty of first-offense driving
during revocation and sentenced him to 60 days in jail with
credit for 9 days already served.
Laflin appealed to the district court, arguing that the county
court erred in overruling his motion to suppress, allowing
Sergeant Carver to testify at trial, allowing the State to reopen
the factual record, finding Laflin guilty beyond a reason-
able doubt, and imposing an excessive sentence. We surmise
from the district court’s order that Laflin argued the trial
judge abused his discretion by initiating the dialog with the
State about venue. Following a hearing on Laflin’s appeal,
the district court affirmed the county court’s conviction and
sentence. The district court determined that the county court
had properly classified Sergeant Carver’s interaction with
Laflin as a noncoercive police-citizen encounter, meaning
Fourth Amendment protections did not apply. The district
court also held that the county court had not abused its dis-
cretion in allowing the State to withdraw its rest and present
additional evidence, but found that even without the additional
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STATE v. LAFLIN
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evidence, the record was sufficient to support a finding of
venue. Finally, the district court determined that Laflin had
not received an excessive sentence.
Laflin appeals from the district court’s order upholding
his conviction.
III. ASSIGNMENTS OF ERROR
Laflin assigns numerous errors on appeal. Restated and
renumbered, his assigned errors are that (1) the trial court erred
in bringing the insufficiency of the evidence regarding venue to
the State’s attention and inviting the State to withdraw its rest
in order to present additional evidence, (2) there was insuffi-
cient evidence of venue submitted, and (3) the trial court erred
in failing to suppress Sergeant Carver’s testimony as a result of
an unlawful seizure.
IV. ANALYSIS
1. Withdrawal of State’s R est
Laflin argues that the trial court erred when it brought the
insufficiency of the evidence regarding venue to the State’s
attention and invited the State to withdraw its rest in order to
present additional evidence. Laflin argues that the trial court
abandoned its role as a neutral fact finder when it brought
the sufficiency of the evidence regarding venue to the State’s
attention and asked the State whether it wished to withdraw its
rest. We agree that the trial court’s actions constituted an abuse
of discretion.
[1,2] In criminal prosecutions, the withdrawal of a rest in
a trial on the merits is within the discretion of the trial court.
State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). An abuse
of discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence.
State v. Gray, 8 Neb. Ct. App. 973, 606 N.W.2d 478 (2000), over-
ruled on other grounds, State v. Nelson, 262 Neb. 896, 636
N.W.2d 620 (2001).
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Nebraska courts have previously addressed when a trial
court abuses its discretion in permitting the State to withdraw
its rest in a criminal case. In State v. Thomas, 236 Neb. 84,
459 N.W.2d 204 (1990), disapproved on other grounds, State
v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999), the defendant
was charged with failure to appear. After the State had rested,
the defendant moved for a directed verdict, contending that the
prosecution was barred by the statute of limitations. Thomas,
supra. The State then moved to withdraw its rest to present
evidence that the defendant fell within an exception to the
statute of limitations for being a person fleeing from justice.
Id. The trial court permitted the State to withdraw its rest.
Id. The Supreme Court affirmed, finding no abuse of discre-
tion. Id.
[3] In Bol, supra, the Supreme Court also affirmed the trial
court’s decision permitting the State to withdraw its rest and
present additional evidence. The State realized after resting
its case that it had forgotten to admit a stipulation that proved
one of the charges. Id. The court stated that Thomas “makes it
clear that withdrawal of rest to fill in gaps in proof is proper,
as long as the court does not advocate for or advise the State
to withdraw its rest.” Bol, 288 Neb. at 153, 846 N.W.2d at
251. Because the State, rather than the trial court, had real-
ized the lack of proof, the Supreme Court determined the trial
court did not abdicate its role as a neutral fact finder and did
not abuse its discretion in permitting the State to withdraw its
rest to put on additional evidence. Id. Accord State v. McKay,
15 Neb. Ct. App. 169, 723 N.W.2d 644 (2006) (affirming trial
court’s decision to permit State to withdraw its rest because
State was alerted to omission in proof by defendant’s motion,
not by court).
In contrast, in State v. Gray, 8 Neb. Ct. App. 973, 606 N.W.2d
478 (2000), we determined the court abused its discretion
in allowing the State to withdraw its rest. The State pre-
sented evidence of the defendant’s no contest pleas in prior
cases for the purpose of enhancing the punishment for the
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STATE v. LAFLIN
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current charge. See id. After the State had rested and dur-
ing a break in the proceedings, the trial judge sent a letter
notifying both parties that he was concerned that the State
had not demonstrated that the defendant had knowingly and
intelligently waived his right to counsel in the prior pleas. Id.
Subsequently, the court permitted the State to withdraw its
rest and adduce additional evidence. Id. We determined that
the court’s actions were an abuse of discretion because by
informing the State of the insufficiency of its evidence, the
judge “departed from his role as neutral fact finder.” Id. at
992, 606 N.W.2d at 495.
[4] Here, as in Gray, it was the court that alerted the State
to the possible deficiency in proof. After both parties had
rested, Laflin had given his closing argument, and the State
had waived closing, the court questioned whether the State
had presented sufficient evidence of venue. The State argued
that it had, but the county court determined the State had not
presented evidence of venue, because it had demonstrated
only the street names where Laflin was stopped, not the city
or county in which he was stopped. The court asked the State
whether it wanted to withdraw its rest to present additional
evidence, at which point the State asked to withdraw its rest.
This case is therefore more aligned with Gray, where the trial
court brought the issue of insufficient proof to the State’s
attention, rather than the other cases in which the State or the
defendant raised the issue that required reopening the record.
In so doing, the county court abandoned its role as a neutral
fact finder. See id. We therefore conclude that it was an abuse
of discretion for the county court to allow the State to with-
draw its rest.
2. Sufficiency of Evidence
to P rove Venue
Laflin argues that there was insufficient evidence to sup-
port his conviction because the State did not present enough
evidence of venue absent the evidence improperly admitted
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STATE v. LAFLIN
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following the withdrawal of the State’s rest. The evidence
the State offered to prove venue was the arresting sergeant’s
affiliation with the Beatrice Police Department and the street
names at which he apprehended Laflin. We agree that there
was insufficient proof of venue.
[5] The State must prove proper venue beyond a reasonable
doubt in criminal cases. See State v. Phelps, 241 Neb. 707, 490
N.W.2d 676 (1992).
[6] In a bench trial of a law action, including a criminal case
tried without a jury, erroneous admission of evidence is not
reversible error if other relevant evidence, admitted without
objection or properly admitted over objection, sustains the trial
court’s factual findings necessary for the judgment or deci-
sion reviewed. State v. Harms, 263 Neb. 814, 643 N.W.2d 359
(2002), modified on denial of rehearing, 264 Neb. 654, 650
N.W.2d 481.
[7] The Nebraska Supreme Court has previously deter-
mined that evidence that a defendant is arrested by police
officers employed by a particular city and at an intersection
of certain streets is insufficient proof of venue. See State v.
Bouwens, 167 Neb. 244, 92 N.W.2d 564 (1958). The Bouwens
court noted that multiple cities often contain streets with the
same name, meaning that a reference to street names alone
does not demonstrate venue. The court also noted that police
of one jurisdiction are sometimes permitted to make arrests
outside the territorial limits of the city that employs them,
so the fact that an officer is employed by a particular body
also does not establish venue. Id. Accord State v. Vejvoda,
231 Neb. 668, 674, 438 N.W.2d 461, 467 (1989) (stating that
testimony that Grand Island police officer observed defendant
driving at “‘7th and Vine Streets’” was insufficient proof of
venue to support conviction for driving under influence in
Hall County).
In the case before us, Sergeant Carver testified that he was
employed by the Beatrice Police Department and had appre-
hended Laflin while writing parking tickets “in the 100 block
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STATE v. LAFLIN
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of North 4th Street.” Per the rule set forth in Vejvoda and
Bouwens, Sergeant Carver’s employment with the Beatrice
Police Department and the street names of the location of the
arrest are insufficient to demonstrate venue. Importantly, the
State did not ask Sergeant Carver what city or county he was
in at the time he apprehended Laflin. This evidence is insuf-
ficient to establish venue.
[8] The State asks us to find a recent unpublished Court of
Appeals case controlling. See State v. Pittman, No. A-14-520,
2015 WL 153812 (Neb. App. Jan. 13, 2015) (selected for post-
ing to court Web site). Unpublished decisions of this court
do not carry precedential weight. See State v. James, 6 Neb.
App. 444, 573 N.W.2d 816 (1998), disapproved on other
grounds, State v. Carlson, 260 Neb. 815, 619 N.W.2d 832
(2000). Furthermore, we find the facts in Pittman inapposite
to the case at hand. We conclude that this case falls under the
rule set forth by the published cases discussed above holding
that street names of the location of the crime coupled with the
arresting officer’s employment with a given law enforcement
body are insufficient to establish venue. See, Vejvoda, supra;
Bouwens, supra.
Alternatively, the State argues that we should consider
Sergeant Carver’s testimony from the suppression hearing in
finding that the State established venue at trial. At the sup-
pression hearing, Sergeant Carver testified that he “was parked
just north of Court Street on 4th Street writing a parking
ticket” when he observed Laflin driving. The State then asked
Sergeant Carver, “Is that location in Gage County, Nebraska?”
to which Sergeant Carver replied, “Yes, it is.” No information
regarding the city or county where Laflin was arrested was
adduced at trial.
[9] The State directs us to previous cases stating that when
a motion to suppress is denied pretrial and again during trial
on renewed objection, an appellate court considers all the
evidence, both from the trial and from the hearings on the
motion to suppress. State v. Ball, 271 Neb. 140, 710 N.W.2d
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592 (2006). However, the cases employing this proposition
have done so in order to determine the correctness of the
ruling excluding or admitting evidence that was the subject
of the suppression hearing, not to allow the State to meet its
burden of proof at trial. See, e.g., id. See, also, State v. Tyler,
291 Neb. 920, 870 N.W.2d 119 (2015); State v. Bromm, 285
Neb. 193, 826 N.W.2d 270 (2013). The State asks us to read
this rule in reverse and consider evidence admitted at the sup-
pression hearing as evidence to prove an essential aspect of
the crime that was otherwise absent at trial—namely, venue.
The State does not direct us to any authority permitting us to
invert and expand the stated rule in this way, and we decline
to do so.
[10,11] Upon a finding of reversible error, the Double
Jeopardy Clause does not forbid a retrial so long as the sum
of the evidence admitted by a trial court would have been suf-
ficient to sustain a guilty verdict. See State v. Edwards, 286
Neb. 404, 837 N.W.2d 81 (2013). When considering the suf-
ficiency of the evidence in determining whether to remand for
a new trial or to dismiss, an appellate court must consider all
the evidence presented by the State and admitted by the trial
court irrespective of the correctness of that admission. State v.
Delgado, 269 Neb. 141, 690 N.W.2d 787 (2005). Here, after
the State was permitted to withdraw its rest, Sergeant Carver
testified that he observed Laflin driving and apprehended him
in Beatrice, Gage County, Nebraska. This evidence is suf-
ficient to demonstrate venue. As such, Laflin is not entitled
to dismissal of the charges against him and can be retried on
remand. See id.
3. Motion to Suppress
[12] Although we find the foregoing analysis dispositive
of this case on appeal, we nevertheless address Laflin’s argu-
ment regarding his motion to suppress, because we believe
it is an issue that is likely to recur during further proceed-
ings. See Edwards, supra. Laflin argues that Sergeant Carver
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unlawfully seized him, because Laflin did not consent to
being detained, a reasonable person would not have felt free
to terminate the encounter, and Sergeant Carver lacked rea-
sonable suspicion when he approached Laflin regarding his
license. Laflin argues that because his seizure violated the
Fourth Amendment, the evidence flowing therefrom, includ-
ing Sergeant Carver’s testimony at trial, should have been
suppressed. The interaction between Sergeant Carver and
Laflin was not a seizure within the meaning of the Fourth
Amendment. Laflin’s assignment of error is therefore with-
out merit.
[13,14] The Fourth Amendment guarantees the right to be
free of unreasonable searches and seizures. State v. Garcia, 281
Neb. 1, 792 N.W.2d 882 (2011). In reviewing a trial court’s
ruling on a motion to suppress based on a claimed violation
of the Fourth Amendment, an appellate court applies a two-
part standard of review. State v. Howell, 284 Neb. 559, 822
N.W.2d 391 (2012). Regarding historical facts, the appellate
court reviews the trial court’s findings for clear error. Id. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that the appellate court reviews
independently of the trial court’s determination. Id.
[15] A tier-one police-citizen encounter involves the vol-
untary cooperation of the citizen elicited through noncoercive
questioning and does not involve any restraint of the liberty
of the citizen. State v. Wells, 290 Neb. 186, 859 N.W.2d 316
(2015). For example, the Nebraska Supreme Court found a
tier-one police-citizen encounter in State v. Twohig, 238 Neb.
92, 469 N.W.2d 344 (1991). In Twohig, officers responded to
a car accident and found an abandoned car that had struck a
power pole and ended up in a ditch. An officer determined
that the vehicle belonged to a Michael Twohig. Id. A short
while later, an officer observed a man limping along a street
about 2 miles from the scene of the accident. Id. The officer
stopped his cruiser and engaged in a conversation with the
man. Id. The officer asked the man who he was and where
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he had come from and learned the man was Twohig. Id. The
Supreme Court determined that this initial encounter was not
a stop within the meaning of the Fourth Amendment, because
it occurred in a public place and involved noncoercive ques-
tions by the officer. Id. The court noted that the officer did not
activate his vehicle’s overhead lights or direct Twohig not to
leave. Id.
We similarly found a first-tier police-citizen encounter in
State v. Hisey, 15 Neb. Ct. App. 100, 723 N.W.2d 99 (2006). In
Hisey, an officer observed Richard Hisey drive by her patrol
car and park in front of Hisey’s house. The officer suspected
that Hisey’s license was still impounded, so she called dispatch
and then pulled up next to Hisey before she confirmed the
status of his license. Id. The officer asked Hisey if he had his
license back. Id. The officer did not activate the emergency
lights on her patrol car. Id. Hisey indicated he had his license
back, but shortly thereafter, dispatch called the officer back
and confirmed that Hisey’s license was still impounded. Id.
We determined that the initial encounter was a tier-one police-
citizen encounter, because the officer was not intense or threat-
ening and a reasonable person in Hisey’s position would have
felt free to leave. Id.
The initial encounter between Sergeant Carver and Laflin
resembles those in Twohig, supra, and Hisey, supra. As did
the police with respect to the defendants in Twohig and
Hisey, Sergeant Carver approached Laflin in a public place
and did not activate the lights on his patrol car. Additionally,
Sergeant Carver approached Laflin on foot, rather than in
his patrol car. Furthermore, Sergeant Carver engaged in con-
versation with Laflin and asked for his license, much like
the officer in Twohig asked the man limping on the side
of the road who he was and like the officer in Hisey asked
whether Hisey had received his license back. Nothing about
the encounter was threatening, and Sergeant Carver did not
instruct Laflin not to leave. Cf. Hisey, supra. We conclude
that the encounter between Sergeant Carver and Laflin was
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a noncoercive, tier-one police-citizen encounter that did not
trigger the protections of the Fourth Amendment. Because we
conclude that Laflin was not seized within the meaning of
the Fourth Amendment, we need not address Laflin’s conten-
tion that Sergeant Carver lacked reasonable suspicion when
he approached Laflin. Laflin’s assignment of error is with-
out merit.
V. CONCLUSION
The trial court erred in allowing the State to withdraw its
rest in order to present additional evidence of venue. Without
considering this erroneously admitted evidence, there was
insufficient proof of venue to sustain Laflin’s conviction. We
reverse the district court’s decision and remand the matter with
directions to reverse Laflin’s conviction and sentence for first-
offense driving during revocation and to remand the matter to
the county court for a new trial.
R eversed and remanded with directions.